IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN RE BANKAMERICA CORPORATION SECURITIES LITIGATION CAROL MACKAY, Appellant, Appeal No vs. Appeal from the HUGH McCOLL, et al., Eastern District of Missouri Appellees. NATIONSBANK CLASSES OPPOSITION TO MACKAY S SECOND MOTION TO SUPPLEMENT THE RECORD ON APPEAL Appellees, the NationsBank Classes, in opposition to appellant Mackay s second motion to supplement the record on appeal, state: Mackay has filed this second motion to supplement the record in an obvious attempt to bolster her petition for panel rehearing. 1 The second motion to supplement should be denied. This Court previously extended Mackay an extraordinary privilege in granting her initial motion to supplement the record on appeal. 2 A second supple- 1 Pursuant to Rule 40(a(3 of the Federal Rules of Appellate Procedure, the NationsBank Classes are not filing any answer to the petition for panel rehearing at this time. 2 See Von Kahl v. United States, 242 F.3d 783, 788 (8th Cir. 2001; Rivers- Frison v. Southeast Missouri Community Treatment Center, 133 F.3d 616, 619 n.2 (8th Cir. 1998; Barry v. Barry, 78 F.3d 375, 379 (8th Cir T:\BankAmerica\Appeal\opp mackay second supp.wpd 1

2 mentation would be beyond extraordinary it may even be unprecedented. This appellant should not be allowed to add to the record in dribs and drabs, supplementing at will whenever the Court rules against her. Enough is enough. Furthermore, examination of the affidavit with which Mackay proposes to supplement the record raises serious questions about the bonafides of Mackay and her counsel. The proposed affidavit is quite curious in its treatment of dates and Mackay s purported discovery of the settlement. While the affidavit states three times within the span of a single page the dates on which Mackay s initial motion to supplement the record on appeal was filed and granted, the affidavit completely fails to state either the date on which Mackay was purportedly appointed executrix of Joseph Sir s estate that would be May 15, or the date that her motion to intervene, objections to the settlement, and related documents were filed with the district court that would be the next day, May 16, These two dates, May 15 and 16, are significant. Mackay s affidavit states: I was appointed Executrix for my father s estate by the Lincoln County Chancery Court. After my appointment, I found the Notice and letter concerning this settlement among my father s papers. I had my counsel review this matter. Based on their advice, I authorized my counsel to file objections to the Settlement as being unfair and unreasonable. 3 appeal. See Exhibit A to Mackay s initial Motion to Supplement the Record on 4 See Exhibit 1 to the NationsBank Classes Motion to Dismiss Appeal for Lack of Standing. T:\BankAmerica\Appeal\opp mackay second supp.wpd 2

3 Mackay affidavit at 1 (parentheticals omitted. Thus, Mackay would have this Court supplement the record on appeal with the following far-fetched tale: On May 15, 2002, the Lincoln County court entered an order appointing Mackay executrix. Mackay promptly received the order. She then found the Notice of proposed settlement among her father s papers. 5 She then contacted her lawyer, forwarded the notice of proposed settlement to him, and had him review the proposed settlement. Presumably Mackay s lawyer performed any further investigation he needed to do to properly advise her. Her lawyer then, without delay, gave her advice which led her to authorize him to file objections on her behalf. This lawyer, or some other counsel, then immediately drafted lengthy objections and supporting papers and had them filed in St. Louis on May 16, 2002, the day following her appointment as executrix. What a tale of extraordinary speed, efficiency, and good fortune. Of course, some of the details are missing, including whether Edward Cochran of Shaker Heights, Ohio, the lawyer whose name appears on the signature block on Mackay s May 16 district court filings, was Mackay s usual lawyer, whom she purportedly initially had review 5 Mackay s Motion for Leave to File Preliminary Objections, one of the papers she filed on May 16, states: The Notice [was mailed] to Mr. Sir s post office box. Carol McKay who lives in a different city from Joseph I. Sir did not receive and review the Notice in order to timely file Objections to the Settlement. See Exhibit 1 to the NationsBank Classes Motion to Dismiss Appeal for Lack of Standing. Thus, if one wishes to reconcile her proposed affidavit with her prior statements, one would have to concluded that following her receipt of her appointment as executrix, Mackay went to a different city and then discovered the settlement notice in Sir s papers. T:\BankAmerica\Appeal\opp mackay second supp.wpd 3

4 the proposed settlement. 6 There is certainly a great deal of distance between Mackay s location in south-central Tennessee, in Lincoln County, Tennessee, just north of Huntsville, Mississippi, and Shaker Heights, a suburb of Cleveland in northern Ohio, more than 500 miles to the northeast. If Cochran was Mackay s usual lawyer, she was fortunate to be represented by a lawyer with his experience in filing objections to class action settlements. 7 If Cochran was not Mackay s usual lawyer, however, then he would have needed to have been identified, contacted, and brought up to speed on the matter. These additional steps would have also had to have taken place in the day between the issuance of the order appointing Mackay executrix and the filing of her objections. CONCLUSION Appeals to this Court are serious business. Parties are required to make their record in the district court. This Court granted Mackay the extraordinary privilege of supplementing her record on appeal. Unfortunately, she has misconstrued the extraordinary nature of this grant and now appears to view it as a right. The result is her proposal to again supplement the record with an incomplete affidavit that, in light of her prior filings, appears to be misleading at best and, at worse, a fraud on the Court. 6 The name of Scott Kessinger of St. Louis, Missouri also appears on the signature block in the district court. Kessinger, however, appears only to have been a local counsel and has not appeared on any of the filings in this Court. 7 See NationsBank Classes Opposition to Appellant s Motion to Supplement the Record on Appeal at 6-7 n.4 (listing reported appellate decisions on objections filed by the professional objectors counsel group of which Cochran is a member. T:\BankAmerica\Appeal\opp mackay second supp.wpd 4

5 Mackay s second motion to supplement the record on appeal should be denied. Respectfully submitted, GREEN SCHAAF & JACOBSON, P.C. By: Martin M. Green Joe D. Jacobson Jonathan F. Andres 7733 Forsyth Boulevard, Suite 700 Clayton, Missouri Telephone: ( Facsimile: ( Liaison Counsel and Lead Counsel for the NationsBank Classes CHITWOOD & HARLEY Martin D. Chitwood Edward H. Nicholson, Jr Promenade II 1230 Peachtree Street, NE Atlanta, Georgia Telephone: ( Facsimile: ( Co-Lead Counsel for the NationsBank Classes STULL STULL & BRODY Jules Brody Aaron Brody 6 East 45th Street, 5th Floor New York, New York Telephone: ( Facsimile: ( Co-Lead Counsel for the NationsBank Classes T:\BankAmerica\Appeal\opp mackay second supp.wpd 5

6 ENTWISTLE & CAPPUCCI, LLP Vincent R. Cappucci Andrew J. Entwistle 299 Park Avenue, 14th Floor New York, New York Telephone: ( Facsimile: ( Executive Committee member for the NationsBank Classes WOLF HALDENSTEIN ADLER FREEMAN & HERZ Daniel W. Krasner Peter C. Harrar Robert Abrams 270 Madison Avenue New York, New York Telephone: ( Facsimile: ( Executive Committee member for the NationsBank Classes T:\BankAmerica\Appeal\opp mackay second supp.wpd 6

7 CERTIFICATE OF SERVICE The undersigned certifies that true and complete copies of the foregoing were served by mailing the same by U.S. Mail, first-class postage prepaid, and by facsimile transmission, this day of March, 2003, to each counsel of record at the following addresses of record: Mitchell A. Margo Curtis Oetting Heinz Garrett & Soule, PC 130 South Bemiston, Suite 200 Clayton, MO Fax: ( Counsel for appellants Koehler and Oetting Frank H. Tomlinson Pritchard & McCall 800 Financial Center 505 North 20th Street Birmingham, AL Fax: ( Counsel for appellant Mackay Arthur N. Abbey Abbey Gardy, LLP 212 East 39th Street New York, NY Fax: ( Counsel for plaintiffs-appellees BankAmerica Classes Warren R. Stern Wachtell Lipton Rosen & Katz 51 West 52nd Street New York, NY Fax: ( Bank of America Corp., et al. John Michael Clear Bryan Cave, L.L.P. 211 North Broadway, Suite 3600 St. Louis, MO Fax: ( Bank of America Corp., et al. Ronald L. Olson Munger, Tolles & Olson, LLP 355 S. Grand Avenue, 35th Floor Los Angeles, CA Fax: ( Coulter, Higgins, and O Neill Barry A. Short Lewis Rice & Fingersh 500 North Broadway, Suite 2000 St. Louis, MO Fax: ( Coulter, O Neill, and Higgins SO CERTIFIED: T:\BankAmerica\Appeal\opp mackay second supp.wpd 7